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2007 DIGILAW 714 (GAU)

Maya Hajong and Ors. v. Manjula Hajong and Ors.

2007-10-12

T.NANDA KUMAR SINGH

body2007
1. The challenge in the appeal under section 299 of the Indian Succession Act, 1925 is to the judgment and order dated 18.6.2003 passed in Misc. Succession Case No. 72 of 2002 by the District Judge, Bongaigaon where under the learned District Judge ordered for issuing Succession Certificate in favour of the respondents/plaintiffs. 2. Heard Mr. B.R. Dey, learned senior counsel appearing for the appellants/Opposite parties Nos. 3, 4, 5 and 6 and also Mr. A. K. Sikdar, learned counsel appearing for the respondents-plaintiffs. 3. The respondents-plaintiffs filed the application under section 372 of the Indian Succession Act, 1925 (for short 'the Act 1925') in the Court of the District Judge, Bongaigaon. The pleaded case of the respondents-plaintiffs in the said application under section 372 of the Act 1925 are that the deceased Prabhat Chandra Hajong married with the respondent-plaintiff No. 1 Smt. Manjula Hajong and they lived together as husband and wife. The respondent/plaintiff No. 3 Shri Dipak Hajong, the plaintiff-respondent No. 2, Smt. Marami Hajong and plaintiff-respondent No. 4 Sri Harmohan Hajong are the children born of the marriage of respondent-plaintiff No. 1 Smt. Manjula Hajong with the deceased Prabhat Chandra Hajong. 4. Before the death of Shri Prabhat Chandra Hajong, he worked as Grade-IV employee under the Oriental Insurance Company Ltd., Bongaigaon, Divisional Office at Bongaigaon and he left Behind an amount of Rs. 2, 25, 000 in different heads fully described in the scheduled to the petition. 5. Admittedly, the respondent-plaintiff No. 1, Smti. Manju a Hajong filed a petition under section 125, Cr.PC in the court of he CJM, Bongaigaon claiming maintenance of the plaintiffs-respond nts from Late Prabhat Chandra Hajong and the said petition under section 125, Cr.PC was registered as Misc. Case No. 45/90. The learned Chief Judicial Magistrate had passed an order allowing the Misc. Case No. 45 of 1990 by awarding maintenance at the rate of Rs. 500 per month for the respondents-plaintiffs by directing the deceased Prabhat Chandra Hajong to pay the same w.e.f. 1.8.1991. 6. Deceased Prabhat Hajong before his death had filed a petition under section 13 of the Hindu Marriage Act for a decree of divorce on 14.9.1994 and it had been registered as T.S.(D) 19/94. 500 per month for the respondents-plaintiffs by directing the deceased Prabhat Chandra Hajong to pay the same w.e.f. 1.8.1991. 6. Deceased Prabhat Hajong before his death had filed a petition under section 13 of the Hindu Marriage Act for a decree of divorce on 14.9.1994 and it had been registered as T.S.(D) 19/94. The T.S. (D) 19/94 was decided ex parte in favour of Prabhat Chandra Hajong on 17.5.1999 and the marriage of the respondent-plaintiff No. 1 Smt. Manjula Hajong with her husband deceased Prabhat Chandra Hajong was dissolved under a decree of divorce but the respondent-plaintiff Nos. 2, 3 and 4 continued to reside with the respondent-plaintiff No. 1 Smt. Manjula Hajong on getting maintenance allowances from late Prabhat Chandra Hajong under the said order of the learned Chief Judicial Magistrate passed in Misc. Case No. 45 of 1990 till the death of deceased Prabhat Chandra Hajong on 7.5.2002. The respondents-plaintiffs also further pleaded in the said application under section 372 Act 1925 that the appellant-defendant No. 1 Smt. Maya Hajong was wife of the Prafulla Hajong who is the elder brother of the deceased Prabhat Chandra Hajong and also that the appellant-defendant No. 2 Shri Rajib, Hajong, appellant-defendant No. 3, Shri Kamal Hajong and the appellant defendant No. 4 Shri Shubham Hajong are the children born of the marriage of the appellant-defendant No. 1, Smt. Maya Hajong with the said Prafulla Hajong. The respondents-plaintiffs filed the said application under section 372 of the Act 1925 in the court of the District Judge, Bongaigaon for issuing the Succession Certificate for the said amount of Rs. 2, 25, 000 left by Prabhat Chandra Hajon in favour of the respondent-plaintiff No. 2 Smt. Marami Hajong, the respondent-plaintiff No. 3, Shri Dipak Hajong and the respondent-plaintiff No. 4 who are the daughter and sons of deceased Prabhat Chandra Hajong. 7. The appellants-defendants also filed the objection in the Misc. Succession Certificate Case No. 72 of 2002 by stating that the appellant-respondent No. 1 Smt. Maya Hajong was the wife of the Late Prabhat Chandra Hajon and also that the deceased Prabhat Chandra Hajong married the appellant-defendant Mo. 1, Smt. Maya Hajong after-divorcing the respondent-plaintiff No. 1, Smt. Manjula ffajong. 7. The appellants-defendants also filed the objection in the Misc. Succession Certificate Case No. 72 of 2002 by stating that the appellant-respondent No. 1 Smt. Maya Hajong was the wife of the Late Prabhat Chandra Hajon and also that the deceased Prabhat Chandra Hajong married the appellant-defendant Mo. 1, Smt. Maya Hajong after-divorcing the respondent-plaintiff No. 1, Smt. Manjula ffajong. It is also pleaded in the written objection that appellant-defendant No. 2, Sri Rajib Hajong, appellant-defendant No. 3, Sri Kamal Hajong and appellant-defendant No. 4 Sri Shubham Hajong are the children of late Prabhat Chandra Hajong through appellant-defendant No. 1, Smt. Maya Hajong but the appellants-respondents in their written objection did not deny that the respondent-plaintiff No. 1, Smt. Manjula Hajong was the wife of late Prabhat Chandra Hajong and he divorced the respondent-plaintiff No. 1, Smt. Manjula Hajong under the decree of divorced passed by the learned District Judge in the said case, i.e., T.S.(D) 19/94. 8. The respondents-plaintiffs adduced three (3) PWs, viz., PW-1, Smt. Manjula Hajong (respondent No. 1), PW-2, Smt. Honomoni Hajong (sister of late Prabhat Hajong and the defendant Sri Prafulla Hajong) and the.PW-3, Tarani Talukdar (neighbour) in support of their case. 9. The appellants-defendants also adduced three (3) DWs, viz., DW-1 Prafulla Hajong (defendant), DW-2 Maya Hajong (appellant-defendant No. 1) and the DW-3 Smt. Raj Kumari Devi in support of their case., 10. After careful appreciation of the statements of PWs and DWs, the learned District Judge passed the impugned judgment and order dated 18.6.2003 directing to issue Succession Certificate in favour of the plaintiffs-respondents in respect of the said amount of Rs. 2, 25, 000 left by Prabhat Chandra Hajong after coming to a finding that the appellant-defendant No. 1, Smt. Maya Hajong was not wife of the late Prabhat Chandra Hajong and also that the appellant defendant No. 2 Shri Rajib Hajong, appellant defendant No. 3, Shri Kamal Hajong and the appellant defendant No. 4, Sri Shubham Hajong are not the sons of late Prabhat Chandra Hajong born of his marriage with appellant-defendant No. 1, Smt. Maya Hajong. Paras 16 and 17 of the impugned judgment and order dated 18.6.2003 read as follows: - "16. Other evidence of Prafulla is that his wife is one Karuna, daughter of some Dhiren. Paras 16 and 17 of the impugned judgment and order dated 18.6.2003 read as follows: - "16. Other evidence of Prafulla is that his wife is one Karuna, daughter of some Dhiren. But he failed to give proper identity of his wife Karuna, because he does not know the mother's name of Karuna and her permanent house. He also states differently. Considering all these aspects, I find that Marami Hajong, Dipak Hajong and Har Mohan Hajong are only the legal heir of Prabhat Chandra Hajong after his death. As sucn, they are entitled to inherit the schedule property equally, that is, one-third of Rs. 2, 25, 000, i.e., Rs. 75, 000 each. That being the position, the decision of Hon'ble Supreme Court reported in (2003) I SCC 730 and referred by learned advocate for opposite parties is considered to be not helpful in the situation of the case. Not to speak of ancestral property even the property of Prabhat Ch. Hajong cannot be claimed by Rajiv Hajong, Kamal Hajong and Subham Hajong as they are found to be sons of Prafulla Hajong through his subsisting marriage with Maya Hajung. 17. It can be noted here that after divorce of petitioner Manjula by Prabhat Ch. Hajong, she has been taking pain to maintain her children namely Marami Hajong, Dipak Hajong and Har Mohan Hajong in her old mother's house with a meagre amount of Rs. 500 per month received from Prabhat Ch. Hajong during his life time. On the other hand, Prabhat Ch. Hajong did not take any step to look after and maintain them. By this time Marami has attained majority. So, I direct to issue succession certificate of Rs. 75, 000 in her name after realization of requisite court fees. A separate succession certificate of Rs. 1, 50, 000 be issued in the name of petitioner Manjula Hajong on behalf of her minor sons Dipak Hajong and Har Mohan Hajong after realization of requisite Court fees, as they are still in her custody, although she is a divorcee. It was decided in absence of the father, the mother is the natural guardian of a children. Mother's remarriage is not disqualification to act as a natural guardian (1990) 2 HLR 529. Herein this case, the petitioner Manjula Hajong is a divorcee, but she is still not re*£n"arrie"d to anybody. It was decided in absence of the father, the mother is the natural guardian of a children. Mother's remarriage is not disqualification to act as a natural guardian (1990) 2 HLR 529. Herein this case, the petitioner Manjula Hajong is a divorcee, but she is still not re*£n"arrie"d to anybody. So, I hold that no impediment to issue succession certificate in her name on behalf of her mentioned two sons. However, it is directed that petitioner Manjula Hajong after collecting the security on behalf of Dipak Hajong and Har Mohan Hajong she will keep Rs. 25, 000 in fixed deposit in the name of each children in any nationalized Bank for the period till they attain majority. The rest amount will be spent by her for the welfare of those minors and proper accounts thereof will be maintained, in the event of necessity such account will be produced before the court as and when called for. With this, this petition is disposed of on contest. However, I put the parties to bear their respective costs." 11. The Apex Court in Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC179 held that the judgment of the 1st appellant (sic) court must display conscious application of mind and the record findings supported by reasons on all issues. The 1st appellate court being a final court of facts, the pure findings of fact by the 1st appellate court shall remain immune from challenging in second appeal. 12. The Apex Court in Santosh Hazari (supra) further held that where view of the trial court is up held, the 1st appellate Court, need not go into the detail. The relevant portion of the para 15 of SCC in Santosh Hazari (supra) is quoted hereunder : - The appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth and pressed by the parties for decision of the appellate court. The task of an appellate court affirming the findings of the trial court is an easier one. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth and pressed by the parties for decision of the appellate court. The task of an appellate court affirming the findings of the trial court is an easier one. The appellate court agreeing with the view of the trial court need not restate the effect of the evidence or reiterate the reasons given by the trial court; expression of general agreement with reasons given by the court, decision of which is under appeal, would ordinarily suffice (See Girijandini Devi v. Bijendra Narain Choudhury)" 13. The Apex Court is also of the similar view regarding the duties of the 1st appellate Court in Madhukar and Others v. Sangram and Others (2001) 4 SCC 756 . 14. It is well-settled law that in a civil suit the plaintiff could not be expected to prove his title beyond any reasonable doubt; a high degree of probability lending assurance of the availability of title with him would be enough to shift the onus on the defendant and if the defendant does not succeed in shifting back the onus, the plaintiff's burden of proof can safely be deemed to have been discharged. Reference may be made to R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami V.P. temple and Another, (2003) 8 SCC 752 . 15. This court is in complete agreement with the finding of the learned District Judge in the impugned judgment and order dated 18.6.2003. Reference may be made to R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami V.P. temple and Another, (2003) 8 SCC 752 . 15. This court is in complete agreement with the finding of the learned District Judge in the impugned judgment and order dated 18.6.2003. But for proper discharging the duties of the 1st appellate Court as contemplated by the Apex Court in Santosh Hazari (supra) and Madhukar and Others (supra), this court also meticulously applied the judicial mind by reading the statements of PWs and DWs to ascertain as to whether the finding of the District Judge in the impugned judgment and order dated 18.6.2003 are based on evidence and also to find out as to whether the respondents-plaintiffs had proved their case to the extent of high degree of probability for lending assurance that the pleaded case of the respondents-plaintiffs in the said application under section 372 of the Indian Succession Act, 1925 are correct to the extent of shifting onus to the appellants-defendants and if the appellants-defendants do not succeed in shifting back onus, the respondents plaintiffs' burden proof can safely be deemed to have been discharged. As stated above, it is admitted by both the parties that respondents-plaintiffs Nos. 2, 3 and 4 are the sons and daughter of late Prabhat Chandra Hajong born of his marriage with the respondent-plaintiff No. 1, Smt. Manjula Hajong. These admitted facts are not, required to be proved. PW-2, Honomoi Hajong who is the sister of the deceased Prabhat Chandra Hajong and the defendant Prafulla Chandra Hajong had deposed (in chief) that the appellant-defendant Smt. Maya Hajong is the wife of defendant Prafulla Chandra Hajong and also that appellant-defendant No. 2, Shri Rajib Hajong, appellant-defendant No. 3, Sri Kamal Hajong and appellant-defendant No. 4 Sri Shubham Hajong are their children. This fact stated by the PW-2 Honomoi Hajong alias Sornyamone Hajong is not shaken by the appellants-defendants. It is also stated by PW-2 in her cross-examination that about 12/13 years ago appellant-defendant No. 1, Smt. Maya Hajong married with late Prabhat Chandra Hajong. DW-1, Prafulla Chandra Hajong. (defendant) had deposed that late Prabhat Chandra Hajong is his own younger brother and he married one Karuna but he did not know the name of the mother of his wife Karuna and the address of his wife Karuna. DW-1, Prafulla Chandra Hajong. (defendant) had deposed that late Prabhat Chandra Hajong is his own younger brother and he married one Karuna but he did not know the name of the mother of his wife Karuna and the address of his wife Karuna. This court is of the considered view that the statements of DW-1 Prafulla Chandra Hajong that he married one Karuna Devi as his wife is not reliable inasmuch as in the course of normal human nature in the peculiar facts of this case, the D.W. No. 1 (the defendant No. 2, Prabhat Chandra Hajong) should know the names of the parent of his wife Smt. Karuna had he really married her. 16. From the perusal of the statement of the DW-2 Maya Hajong, . appellant-defendant No. 1 and the PW-3 Smt. Raj Kumari Devi, PW-5, Lakhi Kanta Sarma, it is clear that none of them can say when the marriage of the appellant-defendant No. 1, Smti Maya Hajong with late Prabhat Chandra Hajong took place. The pleaded case of the respondents in their objection was that the appellant-defendant No. 1 Maya Hajong married with late Prabhat Chandra Hajong after he (Prabhat Chandra Hajong) divorced the respondent-plaintiff No. 1, Smt. Manjula Hajong under an ex parte decree of divorce passed on 17.5.1989 in T.S.(D) 19/94 but the DW-4, Lakhi Kanta Sarma whose statement was recorded on 17.5.2003 stated that about 10/12 years ago during the fife time of late Prabhat Chandra Hajong had brought appellant-defendant No. 1 Smt. Maya Hajong to him to administer them the oath of living together. He also stated that he is not Brahmin D.W-4, Lakhi Kanta Sarma did not state about what he had done for the marriage of late Prabhat Chandra Hajong with appellant-defendant No. 1, Maya Hajong. Over and above none of the DWs stated clearly & that the appellant-defendant No. 2, Rajib Hajong, appellant-defendant No. 3, Shri kamal Hajong and appellant-respondent No. 4 Sri Shubham Hajong are the sons of Prabhat Chandra Hajong born to defendant No. 1, Smt. Maya Hajong. Over and above none of the DWs stated clearly & that the appellant-defendant No. 2, Rajib Hajong, appellant-defendant No. 3, Shri kamal Hajong and appellant-respondent No. 4 Sri Shubham Hajong are the sons of Prabhat Chandra Hajong born to defendant No. 1, Smt. Maya Hajong. The only statements of DWs are that after late Prabhat Chandra Hajong divorced the respondent-appellant No. 1, Smt. Manjula Hajong, he (late Prabhat Chandra Hajong) was residing with Prafulla Chandra Hajong (elder brother and the appellant-defendant) and the members of his family, i.e., Smt. Maya Hajong, Shri Rajib Hajong, Shri Kamal Hajong and Shri Subham Hajong in the same house. It is quite normal in the course of the human conduct that late Prafulla Chandra Hajong being alone after divorcing his wife, (the respondent-appellant No. 1, Smt. Manjula Hajong) residing with the family of his elder brother Prafulla Chandra Hajong. Mere such living with the family with his elder brother Prafulla Chandra Hajong could not come to a finding in the normal parlance that he had taken the wife of his elder brother as his wife. 17. From the above discussion, this court is of the considered view that findings of the learned District Judge in the impugned judgment and order dated 18.6.2003 that the appellant-defendant No. 1, Smt. Maya Hajong is not the wife of late Prafutta Chandra Hajong and a\so that appellant-defendant No. 2, Shri Rajib Hajong, appellant-defendant No. 3, Shri Kamal Hajong, appellant-defendant No. 4, Shri Shubham Hajong are not the sons born by late Prabhat Chandra Hajong to appellant-defendant No. 1 Maya Hajong are based on evidence and correct. 18. Mr. B.R. Dey, learned senior counsel appearing for the appellant by relying on the decision of: the Apex Court in Parayankandiyal Eravath Kanapravan Kallianiamma and Others v. K. Devi and Others (1996) 4 SCC 76 and Jinia Keotin and Others v. Kumar Sitaram Manjhi and Others (2003) 1 SCC 730 strenuously submitted that under section 16 of the Hindu Marriage Act, 1955 as amended by Central Act 68 of 1976, the children born of void or voidable marriage are entitled to claim inheritance or/share in the properties of their parents. This Court also fully endorsed the proposition of law made by Shri B.R. Dey, learned senior counsel appearing for the appellant. This Court also fully endorsed the proposition of law made by Shri B.R. Dey, learned senior counsel appearing for the appellant. But in the present case as discussed above, the appellant-defendant No. 2 appellant-defendant No. 3 and appellant-defendant No. 4 are not even illegitimate sons of fate Prabhat Chandra Hajong and as such the ratio laid down by the Apex Court in the said two cases will not help the case of the appellant. 19. For the reasons discussed above, the appeal is devoid of merit. Accordingly, the same is dismissed. The parties are to bear their own cost.